BC Files Appellate Brief in Belfast Project Case

Here’s the brief Boston College filed today in its appeal of a portion of the Belfast Project subpoenas. I have limited time to write about this, because a dissertation is calling my name, but it seems to me there are some extremely strong arguments here. Unfortunately, those strong arguments appear alongside some tendentious and untenable representations of fact.

See especially the extraordinary footnote on pg. 7, which suggests that Dolours Price waived the confidentiality of her interview materials by speaking to a reporter about the murder of Jean McConville and about the fact that she had done interviews with academic researchers. Price’s public statements, the brief argues, “indicated that she was not seeking to protect the confidentiality of her Belfast Project interviews.” Boston College is claiming that human subjects can waive research confidentiality indirectly and informally, not just by directly and explicitly notifying researchers and archivists that they no longer wish to have research materials protected from disclosure. That’s a hell of a claim, and you can expect to see it attacked by other academic researchers.

Boston College’s lawyer says that Dolours Price made “public statements” admitting that she had given interviews to Boston College and that this indicated that she was no longer prepared to protect the confidentiality of her interviews.

My question is a simple one: exactly which statements are these? As far as I know Dolours Price has made no public statement about her involvement with BC and has never been quoted saying that to anyone anywhere, to journalist, lawyer, newspaper or whoever.

The only reference to her having a connection to Boston College came in a Belfast Sunday tabloid article that appeared in February 2010. The article, in the Sunday Life, had this to say:

“Price, who has made taped confessions of her role in the abductions to academics at Boston University (sic), will relay this information to ICLVR (Independent Commission for the Location of Victims’ Remains) investigators later this week.”

That is all there is. A bald statement (which manages to name the wrong university) based on what? Where are Dolours Price’s quotes? Where is the evidence for this claim? Where does this information come from? The reporter, Ciaran Barnes, does not say even though he claims to have listened to tapes stored in the vaults at Boston College. It seems to me quite extraordinary that in a legal case as important as this that claims are being made about what Dolours Price said with absolutely no evidence to back them up.

BC’s lawyer goes on to say: “(Dolours Price) provided much of the information about her role in the IRA and the disappearances of individuals, including Jean McConville, in public interviews”.

The two articles allege that Dolours Price made admissions about Jean McConville’s disappearance and cite taped interviews she made as the source. So, where are the quotes from these taped interviews, supposedly made by her in conversations with Anthony McIntyre? If she told McIntyre these things then why not quote her? A simple question to ask, a simple demand to make and most journalists would regard their work as unworthy of publication if it wasn’t backed up by such quotes or equivalent convincing evidence. But the single defining and damning feature of the newspaper articles upon which this whole subpoena saga has been based (and which in turn Boston College’s lawyer bases his and the college’s desertion of Dolours Price) is that there is not a single quote anywhere to back anything up, not a shred of evidence that she said anything to McIntyre about Jean McConville or anyone else “disappeared” by the IRA in the early 1970’s.

If the New York Times or the Boston Globe were presented with such stories their editors would correctly reject them as being a series of unsubstantiated assertions and they would be spiked. Yet here we have a protracted and expensive legal process which could have devastating consequences for many of those involved which is based upon newspaper articles that carry no quotes nor any evidence of any meaningful sort to back up what they publish. If it wasn’t so serious it would be laughable!

Going further, say for the sake of argument that all of your conditions were met: Dolours Price made specific comments in public about the McConville murder and the BC tapes, and those statements were precisely described and documented. Would that constitute a waiver of confidentiality? The answer is still no. The promise a researcher or an archivist makes to a research subject to hold interview material confidential requires a direct, explicit waiver. This idea of an implicit and indirect waiver is ridiculous under any circumstances. These claims will be remembered.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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